There is much discussion as to both the perception of and the strategic impact of filing first in an Illinois divorce. Filing first in an Illinois divorce case is NOT always the smart move, however. There are numerous disadvantages to filing first in an Illinois divorce case.
If you are not filing for divorce first, you do NOT know when your spouse will file for divorce. The only thing you know is that the filing will happen in the future. A later filing date may be in your interest if you expect to receive maintenance (formerly known as alimony). The duration of maintenance payments is based on the length of the marriage UP TO the date of the filing of the petition for dissolution of marriage.
Maintenance “shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B)
Likewise, if your spouse is accumulating assets, those assets are considered marital and, thus, divisible until the day you are divorced.
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
The later the initial filing, the later the actual entry of the divorce. The later the actual entry of the divorce is, the more marital assets there are to distribute.
A delayed filing for divorce means more assets are likely to be divided 50/50. All contributions to the marital estate will likely be considered divisible if made before the filing of the Petition for Dissolution of Marriage. Illinois divorce courts can consider “whether the contribution [to the marital estate] is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)(iii)
Custom also requires the party who files first (the Petitioner) to put on their case in chief first at trial(Note: there is no actual rule for this. Trust me, I checked.) Not filing first in an Illinois divorce and, therefore, being the Respondent can allow you to see your opponent’s case before putting on your own case. This strategy could allow you to counter your opponent’s narrative more effectively as you’d be responding to it directly. But, this strategy also lets your opponent present their narrative first for possible greater impact with the judge. Additionally, you cannot waive scope at trial if you want to see all of your opponent’s evidence before presenting your evidence. Failure to waive scope makes a trial feel stilted and annoys the judge.
Few trials have a surprise element worth delaying filing if the discovery is eventually done properly.
There is probably no disadvantage to filing a divorce first that would be a counterweight to the fact that the party filing for divorce first gets to pick what county the divorce will proceed in.
“Venue. The proceedings shall be had in the county where the plaintiff or defendant resides” 750 ILCS 5/104(a)
Different counties have different rules, different judges and different cultural attitudes towards divorce. One need only move to a new county and file first for divorce to take advantage of those rules, judges and attitudes. So, few strategic thinkers truly wait for their spouse to file for divorce first.
To discuss the advantages and disadvantages of filing for divorce first or waiting to file an answer and/or counter-petition of dissolution of marriage, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.